In the majority of cases, the matrimonial home is invariably the most important and valuable asset. It is also often the most contentious issue to resolve once parties have come to the conclusion that the marriage is at an end.
One party is often fearful that their husband or wife will try and dispose of the property or avoid their responsibilities by trying to dispose of it through a sale or transfer. There are various mechanisms available to protect against this and you should raise this with your lawyer at the first possibly opportunity.
Property in Joint Names
If property is held in your joint names, neither of you can deal with the legal title of that property in any way without the other’s consent. Both signatures will be required in virtually every case. Therefore it is unlikely that any additional measures will need to be taken to protect against one spouse trying to dispose of it without their partner’s knowledge.
However, you should consider carefully the need to alter the way the property is held if you are considering commencing divorce proceedings. Most couples will hold the property as “joint tenants”. This means that in the event of the death of either one of you, the deceased person’s interest transfers straight to their partner. However, once the relationship has broken down, many couples would prefer their interest to pass to their estate in accordance with their will. This preserves and protects the value of their interest.
In order to do this, a solicitor should “sever the joint tenancy” at the very start of the divorce proceedings. Notice will need to served on your partner and the land registry will need to be notified so that the title deeds can be amended. From that point, although the property is still jointly owned, you will hold the property as “tenants in common”. It is important to understand that if you do not have a will, even if the joint tenancy is severed, your spouse will obtain your share of the property through the rule of intestacy. It is therefore very important that you make or review your will at the start of any divorce.
Property in Sole Name
If during your marriage, the property is owned by only one of you, it is possible that your spouse can sell or dispose of the property without your knowledge or consent. If this is the case, you should notify your solicitor during the initial meeting.
In order to prevent your husband or wife dealing with the property, your solicitor can register a notice with the land registry which prevents any sale, transfer or increase in mortgage or borrowing. If the property is the matrimonial home, this process is known as the registration of home rights and is a vital step in circumstances where property is not owned or held jointly. It is also possible to register a notice on property other than the matrimonial home and likewise, advice should be sought from your solicitor straight away.